Hunt, Kathy v. Cox Oil, Co.

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Kathy Hunt, ) Docket No. 20158-06-0687

Employee, )

v. ) State File No. 49530-2015

Cox Oil Co., )

Employer, ) Judge Joshua Davis Baker

And )

Technology Ins./Amtrust )

Insurance Carrier. )

)

AMENDED EXPEDITED HEARING ORDER GRANTING MEDICAL

BENEFITS

This matter came before the undersigned workers’ compensation judge on the

Request for Expedited Hearing filed by the employee, Kathy Hunt, pursuant to Tennessee

Code Annotated section 50-6-239 (2015). The present focus of this case is whether Cox

Oil Company must provide Ms. Hunt a panel of physicians, pay bills associated with

unauthorized care, and provide temporary disability benefits. The central legal issue is

whether Ms. Hunt can demonstrate a likelihood of success at a trial on the merits of these

issues. For the reasons set forth below, the Court finds Ms. Hunt is likely to succeed at a

hearing on the merits in proving entitlement to a panel of physicians. The Court finds

Ms. Hunt unlikely, however, to succeed at a hearing on the merits in proving entitlement

to past medical bills or temporary disability benefits based on the evidence presented at

this time.1

History of Claim

Ms. Hunt is a sixty-three-year-old resident of Humphreys County, Tennessee. She

worked for Cox Oil in one of its “Little General” convenience stores, located in McEwen,

Tennessee. Her duties at the store included making pizzas for customers to purchase.

Some of the ingredients to make the pizzas were stored in a freezer located in a shed on

1

A complete listing of exhibits and the technical record admitted at the Expedited Hearing is attached to this Order

as an appendix.

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the store property.

In June 2015, Ms. Hunt went to the freezer to get some frozen pizza dough. 2 She

testified the pizza dough had been placed on a high shelf in the freezer, which required

her to reach above her head to retrieve the dough. According to Ms. Hunt, each box

contained eighteen pizza dough packages and weighed approximately twenty-five

pounds.

Ms. Hunt testified the box had frozen to the shelf making it difficult to remove.

She eventually loosened the box and attempted to guide it down from the shelf using her

left hand. The box, however, fell too fast and directly on Ms. Hunt’s left hand and arm.

In its descent, the force of the box pulled her left arm down with it. Ms. Hunt testified

she felt immediate pain and likened the sensation to someone stabbing her in the shoulder

with a knife.

Ms. Hunt testified she spoke to the store manager, Betty Langford, via telephone

the day after the accident occurred. She told Ms. Langford “what exactly happened” and,

according to Ms. Hunt, Ms. Langford told her the accident “should be workmen’s comp.”

Ms. Langford was on vacation when Ms. Hunt spoke with her.

After several days passed, without hearing word about her accident, Ms. Hunt

became concerned. On the advice of a co-employee, she contacted Jackie Richardson

Cox Oil’s central-office manager.3 According to Ms. Hunt, Ms. Richardson stated she

turned information concerning her accident over to Technology Insurance, Cox Oil’s

workers’ compensation insurance carrier. Ms. Hunt testified she called Technology

Insurance and left several messages for Deborah McGee, a claims representative. Ms.

McGee did not return her calls. Ms. Hunt did, however, receive a letter from “Carlisle

Medical” concerning a prescription drug program available for workers’ compensation

patients around the time she contacted Technology Insurance. (Ex. 5.)

On June 17, 2015, Ms. Hunt received treatment from Jennifer Gerber, a nurse

practitioner at Waverly Family Medicine. (Ex. 1 at 3-4.) She paid for these services

with her private insurance, BlueCross BlueShield (BCBS). (Ex. 3.) FNP Gerber

recommended an MRI and told Ms. Hunt she could return to work light duty pending the

results of the MRI. (Ex. 1 at 4.)

Ms. Hunt underwent an MRI on June 20, 2015. It revealed the following:

2

In her affidavit, Ms. Hunt stated her injury occurred on June 8, 2015. At the hearing, she testified the accident

occurred on June 5, 2015. The parties discussed the discrepancy during the hearing. The exact date of injury,

however, is not determinative of any issue in this Expedited Hearing.

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Ms. Hunt first referred to Ms. Richardson as “Jackie Baker” when testifying.

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1. Mild osteoarthritis in the LEFT acromioclavicular joint and

glenohumeral joint.

2. Multiple small loose bodies in the recesses of the LEFT glenohumeral

joint consistent with nephritis.

3. Mild tendinopathy of the supraspinatus and infraspinatus tendons with

mild tendinopathy of the subscapularis tendon. No significant tear.

4. A SLAP tear of the biceps anchor proximal kink in the posterior

superior labrum. Anterior inferior labrum appears torn.

5. Bicipital tenosynovitis.

6. Capsulitis.

(Ex. 1 at 40.)

Chad Turnbow, Cox Oil’s area supervisor of its Little General convenience stores,

testified he first learned Ms. Hunt suffered an injury while speaking with Ms. Langford

around June 17, 2015. Ms. Langford needed approval to work overtime because Ms.

Hunt requested time off from work to have shoulder surgery. Mr. Turnbow told Ms.

Langford that Ms. Hunt could not return to work until released by her doctor. According

to Mr. Turnbow, Cox Oil does not offer light duty work to its convenience store workers

because the workers could suffer further injury by working before they are physically

able. Mr. Turnbow testified he did not know Ms. Hunt’s injury was work-related and so

began preparing FMLA paperwork for Ms. Hunt to complete. Around June 24, 2015,

Ms. Hunt met Mr. Turnbow at the Little General convenience store and showed him how

the accident occurred. After speaking with Ms. Hunt, Mr. Turnbow reported the incident

to the Cox Oil central office as a work-related injury. Mr. Turnbow did not know what

happened with the claim after he reported it, but said Ms. Richardson would be

responsible for providing Ms. Hunt a panel of physicians.

In late June 2015, FNP Gerber referred Ms. Hunt to Dr. Jason Haslam, an

orthopedic surgeon. Dr. Haslam treated Ms. Hunt’s shoulder with steroids and

conservative methods. He also prescribed physical therapy. (Ex. 1 at 8-13.) Ms. Hunt

paid for these services through BCBS until she received a notice from STAR Physical

Therapy stating BCBS refused to pay for additional physical therapy sessions because her

injury was work-related. (Ex. 6.)

Despite the denial of further physical therapy, Ms. Hunt continued to see Dr.

Haslam. On October 23, 2015, Dr. Haslam wrote the following in his treatment notes:

Impression: Left shoulder pain from an injury which occurred at work on

6/12/2015. I believe her underlying current problem is degenerative joint

disease which was aggravated by a strain of the shoulder associated with

catching a box at work. I generally would consider treating her injury

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which occurred on June 12, 2015 for a total of 3 months under Workers’

Compensation given the strain to the shoulder. However after 3 months, I

would treat under her commercial insurance given the underlying diagnosis

of degenerative changes and loose body formation in the glenohumeral

joint. The degenerative disease process is not a work-related injury. At the

present time, it is my opinion that her current symptoms are attributable to

her work-related injury by 30%. In other words, her current shoulder

symptoms are not primarily related to her work related injury which

occurred on June 12, 2015. This was reviewed with the patient in detail. I

will see the patient back as needed. She may get a second opinion. In the

meantime, we will provide a cortisone injection to hopefully decrease her

overall pain.

(Ex. 1 at 16-17.)

On November 19, 2015, Ms. Hunt returned to Waverly Family Medicine and

received treatment from Dr. Lawrence R. Jackson, Jr. Dr. Jackson opined Ms. Hunt’s

workplace injury caused the problems identified in the MRI. (Ex. 1 at 21-23) In

response to a causation opinion letter he received from Mr. Hicks, Ms. Hunt’s attorney,

Dr. Jackson answered yes when asked whether he believed Ms. Hunt’s condition was

primarily caused by her workplace accident. (Ex. 1 at 19.)

Ms. Hunt filed a Petition for Benefit Determination seeking temporary disability

and medical benefits. (T.R. 1.) The parties did not resolve the disputed issues through

mediation, and the Mediating Specialist filed a Dispute Certification Notice (DCN).

(T.R. 2.) Ms. Hunt filed a Request for Expedited Hearing, and this Court heard the

matter on February 17, 2016.

At the Expedited Hearing, Ms. Hunt argued Cox Oil must pay the medical bills for

treatment she received from Drs. Jackson and Haslam, and FNP Gerber at Waverly

Family Medicine. She also seeks to recover the cost of physical therapy.

Ms. Hunt denied having shoulder problems before coming to work for Cox Oil.

At the time of the hearing, Ms. Hunt continued to experience pain in her shoulder and

have difficulty lifting items weighing as little as five pounds without pain. She asked for

a panel of physicians to treat her condition.

Additionally, Ms. Hunt testified she could not work because Cox Oil had no light

duty available. She asked for temporary total disability benefits for the time she missed

from work.

Cox Oil maintained Ms. Hunt is not entitled to any benefits because she cannot

prove medical causation. In support of its position, Cox Oil relies on Dr. Haslam’s

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causation opinion.

Findings of Fact and Conclusions of Law

I. The Court finds Dr. Haslam’s causation opinion more persuasive than Dr.

Jackson’s.

Ms. Hunt seeks temporary disability and medical benefits. At this time, the central

dispute over entitlement to these benefits concerns proof of a causal relationship between

the injury and her need for medical treatment. Here, Dr. Jackson and Dr. Haslam

provided differing medical opinions on the cause of Ms. Hunt’s shoulder condition.

Resolution of the causation dispute, therefore, turns in part on the Court’s comparison of

the medical opinions:

When the medical testimony differs, the trial judge must obviously choose

which view to believe. In doing so, he is allowed, among other things, to

consider the qualifications of the experts, the circumstances of their

examination, the information available to them, and the evaluation of the

importance of that information by other experts.

Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). For the reasons

hereafter, the Court credits Dr. Haslam’s opinion.

The Court finds Dr. Haslam more qualified than Dr. Jackson to provide an opinion

on causation of Ms. Hunt’s shoulder condition. Dr. Haslam is an orthopedic surgeon and,

therefore, familiar with conditions affecting bones, joints and ligaments.4 While neither

side presented evidence of Dr. Jackson’s specialty, his associate, FNP Gerber, referred

Ms. Hunt to an outside provider for orthopedic care. Accordingly, while the facts do not

directly address his specialty area, the Court infers Dr. Jackson is not an orthopedic

specialist.

The Court finds the circumstances of Dr. Haslam’s examination made his

causation opinion more reliable. Dr. Haslam began treating Ms. Hunt on July 1, 2015,

between three and four weeks after her accident. Dr. Haslam treated Ms. Hunt on several

occasions in July and August providing pain relief shots and referring her for physical

therapy. He provided a causation opinion after directing her treatment over this period.

Dr. Jackson, on the other hand, did not begin treating Ms. Hunt until November 2015.

The evidence shows he saw her only twice and provided an opinion on causation after the

first visit. With respect to the information available to the physicians, the undersigned

4

Orthopedics - a branch of medicine concerned with the correction or prevention of deformities, disorders, or

injuries of the skeleton and associated structures (as tendons and ligaments). http://www.merriam-

webster.com/dictionary/orthopedics (last visited Mar. 4, 2016).

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finds this factor does not add credibility to either Dr. Jackson’s or Dr. Haslam’s opinions

as both essentially had access to the same information.

Based on his area of specialty and greater involvement in treating Ms. Hunt’s

injury, the Court finds Dr. Haslam’s opinion more persuasive than Dr. Jackson’s. The

meaning of Dr. Haslam’s opinion, however, is difficult to decipher.

Dr. Haslam opined he would “generally consider” treating Ms. Hunt’s injury

under workers’ compensation for three months due to the “strain to the shoulder,” but

also opined her “current shoulder symptoms are not primarily related to her work-related

injury.” Instead, Dr. Haslam attributes these symptoms to degeneration. In this Court’s

view, Dr. Haslam’s opinion appears to be that Ms. Hunt’s “shoulder strain” is work-

related but her degenerative condition, which he opined is the cause of her current

symptoms, is not. The opinion, however, could also mean that Dr. Haslam would have

treated Ms. Hunt’s injury as workers’ compensation in the past, but would not do so

under the present causation standard. The point is, the Court is unsure what Dr. Haslam

meant. Due to the uncertainty of the opinion’s meaning, the Court finds Ms. Hunt

unlikely to prevail at a hearing on the merits in proving medical causation.5

II. Cox Oil must provide Ms. Hunt a panel of orthopedic physicians.

The administrative rules governing procedures in the Bureau of Worker’s

Compensation provide, “[u]pon notice of any workplace injury, other than a minor injury

for which no person could reasonably believe requires treatment from a physician, the

employer shall immediately provide the injured employee a panel of physicians that

meets the statutory requirements for treatment of the injury.” Tenn. Comp. R. & Regs.

0800-02-01-.25(1) (2015). An employer who fails to comply with this rule without good

cause could be assessed a civil penalty of up to $5,000. Id.

Here, Ms. Hunt proved she had an accident in the course and scope of her

employment when she injured her shoulder while retrieving a box of frozen pizza dough

from a freezer shelf in June 2015. She also proved she timely reported the injury to her

employer, as she told Mr. Turnbow of the injury when he visited the Little General Store

sometime around June 24, 2015. See Tenn. Code Ann. § 50-6-201(a)(1) (2015).

According to Mr. Turnbow’s testimony, he took appropriate steps to report the injury to

Cox Oil’s central office on June 24. Additionally, Mr. Turnbow knew Ms. Hunt sought

medical care for her injuries. Ms. Hunt, therefore, has come forward with sufficient

evidence from which this Court concludes she is likely to prevail at a hearing on the

merits in proving she timely reported a workplace accident.

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For the same reason, the Court also finds Dr. Haslam’s opinion insufficient to support a finding of

noncompensability.

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Although she treated privately and Dr. Haslam opined her current need for

treatment did not arise primarily out of her workplace injury, the Court, as stated

previously, is not satisfied that his opinion definitively addressed the issue of medical

causation. Ms. Hunt, however, does not have to prove compensability by a

preponderance of the evidence at an expedited hearing to receive a physician panel. See

McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.

App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead,

she only needs to present sufficient evidence from which this Court can determine that

she is likely to prevail at a hearing on the merits when requesting a panel. Id.

Considering the Court’s finding concerning Dr. Haslam’s causation opinion, Dr.

Jackson’s causation opinion, Ms. Hunt’s timely reporting of her workplace accident, the

severity of her injury, her continued need for treatment, and Dr. Haslam’s permission of a

second opinion, the Court finds Ms. Hunt will likely prevail at a hearing on the merits in

proving entitlement to a panel of physicians. The Court, therefore, finds Cox Oil must

provide Ms. Hunt a panel of physicians.

III. Ms. Hunt cannot recover temporary disability benefits or medical bill

reimbursement.

In order to prevail in her request for temporary total disability benefits and

payment of past medical bills in this Expedited Hearing, Ms. Hunt must convince this

Court she is likely to prevail at a hearing on the merits of her entitlement to those

benefits. See Tenn. Code Ann. § 50-6-239(d)(1) (2015). To prevail on either of these

issues at a compensation hearing, Ms. Hunt must prove, by a preponderance of the

evidence, that she suffered a compensable injury. See Tenn. Code Ann. § 50-6-

204(a)(1)(A) (2015); Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978) (An

employee is entitled to receive temporary total disability benefits pursuant to Tennessee

Code Annotated section 50-6-207(1) whenever the employee has suffered a compensable,

work-related injury that has rendered the employee unable to work.); see also, James v.

Landair Transport, Inc., No. 2015-02-0024, 2015 TN Wrk. Comp. App. Bd. LEXIS 28,

at *16 (Tenn. Workers’ Comp. App. Bd. Aug. 26, 2015).

At this time, the proof does not establish Ms. Hunt suffered a compensable injury

due to the lack of a compelling, clear opinion on medical causation. While it is a close

question of whether Dr. Haslam’s opinion establishes causation for the shoulder strain

injury, Dr. Haslam’s additional statement that Ms. Hunt’s current symptoms are only

30% caused by her workplace accident renders the opinion too speculative to support a

compensability finding in this Court’s opinion. Accordingly, without a clear causation

opinion, the Court does not find Ms. Hunt likely to prevail at a hearing on the merits in

proving compensability of her injuries and, therefore, cannot recover past medical bills or

temporary disability benefits at this time.

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IT IS, THEREFORE, ORDERED as follows:

1. Cox Oil shall provide Ms. Hunt a panel of orthopedic specialists for treatment of

her left-shoulder injury as required by Tennessee Code Annotated section 50-6-

204 (2015) from which Ms. Hunt shall select a treating physician. Medical bills

shall be furnished to Cox Oil or its workers’ compensation carrier by Ms. Hunt or

the medical providers.

2. Ms. Hunt’s claim against Cox Oil and its workers’ compensation carrier for the

requested temporary disability benefits and medical bills is denied at this time.

3. This matter is set for an Initial (Scheduling) Hearing on April 18, 2016, at 10:00

a.m. (CDT).

4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance

with this Order must occur no later than seven business days from the date of entry

of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)

(2015). The Insurer or Self-Insured Employer must submit confirmation of

compliance with this Order to the Bureau by email to

WCCompliance.Program@tn.gov no later than the seventh business day after

entry of this Order. Failure to submit the necessary confirmation within the period

of compliance may result in a penalty assessment for non-compliance.

5. For questions regarding compliance, please contact the Workers’ Compensation

Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)

253-1471 or (615) 532-1309.

ENTERED ON THIS THE 10TH DAY OF MARCH, 2016.

_____________________________________

Judge Joshua Davis Baker

Court of Workers’ Compensation Claims

Initial Hearing:

A Scheduling Hearing has been set with Judge Joshua Davis Baker, Court of

Workers’ Compensation Claims. You must call 615-741-2113 or toll free at 855-

874-0474 to participate in the Initial Hearing.

Please Note: You must call in on the scheduled date/time to

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participate. Failure to call in may result in a determination of the issues without

your further participation. All conferences are set using Central Time (CT).

Right to Appeal:

Tennessee Law allows any party who disagrees with this Expedited Hearing Order

to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of

Appeal, you must:

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

2. File the completed form with the Court Clerk within seven business days of the

date the Workers’ Compensation Judge entered the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The appealing party is responsible for payment of a filing fee in the amount of

$75.00. Within ten calendar days after the filing of a notice of appeal, payment

must be received by check, money order, or credit card payment. Payments can be

made in person at any Bureau office or by United States mail, hand-delivery, or

other delivery service. In the alternative, the appealing party may file an Affidavit

of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing

fee. The Affidavit of Indigency may be filed contemporaneously with the Notice

of Appeal or must be filed within ten calendar days thereafter. The Appeals Board

will consider the Affidavit of Indigency and issue an Order granting or denying

the request for a waiver of the filing fee as soon thereafter as is

practicable. Failure to timely pay the filing fee or file the Affidavit of

Indigency in accordance with this section shall result in dismissal of the

appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,

may request, from the Court Clerk, the audio recording of the hearing for the

purpose of having a transcript prepared by a licensed court reporter and filing it

with the Court Clerk within ten calendar days of the filing of the Expedited

Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of

the evidence within ten calendar days of the filing of the Expedited Hearing

Notice of Appeal. The statement of the evidence must convey a complete and

accurate account of what transpired in the Court of Workers’ Compensation

Claims and must be approved by the workers’ compensation judge before the

record is submitted to the Clerk of the Appeals Board.

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6. If the appellant elects to file a position statement in support of the interlocutory

appeal, the appellant shall file such position statement with the Court Clerk within

three business days of the expiration of the time to file a transcript or statement of

the evidence, specifying the issues presented for review and including any

argument in support thereof. A party opposing the appeal shall file a response, if

any, with the Court Clerk within three business days of the filing of the appellant’s

position statement. All position statements pertaining to an appeal of an

interlocutory order should include: (1) a statement summarizing the facts of the

case from the evidence admitted during the expedited hearing; (2) a statement

summarizing the disposition of the case as a result of the expedited hearing; (3) a

statement of the issue(s) presented for review; and (4) an argument, citing

appropriate statutes, case law, or other authority.

APPENDIX

Exhibits:

1. Medical records

2. Ms. Hunt’s affidavit

3. Medical Bills

4. Notice of Claim postcard

5. Carlisle Medical letter

6. BCBS insurance payment denial letter

7. Hunt written statement

8. Wage Statement

Technical record:6

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. July 22, 2015 Letter from Charles Hicks

5. November 4, 2015 Letter from Mike Jones

6. Pre-hearing Order

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The Court did not consider attachments to Technical Record filings unless admitted into evidence during the

Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as

allegations unless established by the evidence.

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent to the

following recipients by the following methods of service on this the 10th

___ day of March,

2016.

Name Certified First Via Fax Via Email Address

Mail Class Fax Num Email

Mail ber

Charles L. x larry_hickslaw@bellsouth.net

Hicks, Esq.

Mike Jones, Esq. x mjones@wimberlylawsom.com

_____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

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